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Garvey v. Morgan Communities

United States District Court, N.D. New York

November 22, 2017

SHAUN GARVEY, Plaintiff,

          SHAUN GARVEY, Plaintiff, pro se.


          Hon. Andrew T. Baxter U.S. Magistrate Judge.

         The Clerk has sent to the court for review a civil rights complaint brought pursuant to 42 U.S.C. § 1983 and exhibits in support of the complaint. (Dkt. Nos. 1, 4). Plaintiff has also filed motions to proceed in forma pauperis (“IFP”).[1] (Dkt. Nos. 2-3).

         I. IFP Application

         A review of plaintiff's motions to proceed IFP shows that plaintiff has failed to properly complete either document, and the documents contain conflicting information even though they were filed on the same day. (Dkt. Nos. 2, 3). In plaintiff's first motion, he states that, in the past twelve months, he has received money from gifts or inheritances, but does not answer the question regarding the description of such money. (Dkt. No. 2 ¶ 3(f)). However, in the second motion, he states that he has not received money from gifts or inheritances. (Dkt. No. 3 ¶ 3(f)). In plaintiff's first motion, he states that he has cash in a checking account, and the amount “Depends $100-$1000, ” while in the second motion, he states that he has $1000 in his account. (Dkt. Nos. 2, 3, ¶ 4). In plaintiff's first motion, he states that he has no real estate, stocks, bonds, securities, other financial instruments, automobiles or any other thing of value. (Dkt. No. 2 ¶ 5). In plaintiff's second motion, he has answered “Yes” to this question, but does not describe the property or its approximate value. (Dkt. No. 3 ¶ 5). The rest of plaintiff's second motion seems to be completed correctly. However, with such conflicting information, this court cannot determine whether plaintiff meets the financial criteria for proceeding without payment of fees.

         Normally, the court would allow plaintiff to submit a properly completed form. However, notwithstanding the deficiencies in plaintiff's application, the court will continue with its analysis because the court finds that plaintiff fails to state a claim and will recommend dismissal of this action.

         In addition to determining whether plaintiffs meet the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i) -(iii).

         In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

         To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).

         II. Facts

         Plaintiff does not recite many of his facts in full sentences, but the court will attempt to determine what plaintiff is claiming by reviewing the complaint and the exhibits that plaintiff has filed in support of the complaint. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (pro se papers are interpreted liberally to raise the strongest arguments suggested therein). Plaintiff is suing Morgan Communities (“MC”) for “wrongful eviction.” (Complaint (“Compl.” ¶ 4) (Dkt. No. 1). MC is the owner of the apartment complex in which he lived. (Id.) He states that defendant MC committed fraud and made false accusations to the police and to the “court system.” Plaintiff also mentions libel and slander, which allegedly “caused the eviction, ” emotional distress, and “rent lease ejectment.” (Id.)

         Plaintiff has used a form-complaint for actions brought under 42 U.S.C. § 1983, which contains a section entitled “Causes of Action.” (Compl. ¶ 5). Plaintiff has filled in “Causes of Action, ” but the statements are more in the nature of additional facts. Plaintiff claims that defendant MC caused his wrongful eviction, and “[the] Judge is not willing to evaluate [the] case. (Id.) Plaintiff states that “they docketed”[2] a lease which “dis-includes” plaintiff.

         Plaintiff also alleges that the false police reports contained statements “against” the plaintiff which damaged him, and the wrongful eviction caused emotional distress. Plaintiff states that based on the false reports, “they have caused negligence in conduct along with perjury on documents. Plaintiff claims that there was no evidence for the “judge” to grant eviction. In a footnote, marked with an asterisk, plaintiff apologizes for the “excessive documents” that he has filed in support of the complaint, but blames this on “Judge Lauri”[3] and his lack of knowledge of tenancy laws. (Compl. at CM/ECF p.4). Plaintiff states that he has been “fighting to be heard on this eviction.” (Id.) Plaintiff seeks substantial monetary damages. (Compl. ¶ 6).

         III. Jurisdiction

         A. ...

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